The requirements and the burden of proof for the insurer to return unjust enrichment or claim for damages against the insured for infringing the insurer's subrogation right.

In order for the insurer who has paid insurance money to return unjust enrichment or claim compensation against the insured for violation of the insurer's right of subrogation against the insured, the insurer paid the insurance money to the insured, the fact that the insured was paid damages from a third person notwithstanding the insured without fault after the insured received the insurance money (where the insured's insurance money received from the insurer falls short of the actual amount of damages, the insured still has his/her right to the third person with respect to the difference and thus the insured has been paid damages from a third person) and the insured's compensation against the third person is valid as repayment to the quasi-Possessor of the claim. In this case, the good faith as a requirement for the validity of the repayment to the quasi-Possessor of the claim must be proved not only by the quasi-Possessor but also by the insurer's failure to know that the quasi-Possessor was not entitled to receive the payment, but also by the insurer's belief that the third person was the true right holder. Thus, the insured's failure to bear the burden of proof is still subject to the insurer's right of subrogation.

Article 470 of the Civil Act, Articles 682 and 729 of the Commercial Act

Supreme Court Decision 94Da11071 delivered on October 7, 1994 (Gong1994Ha, 2947) Supreme Court Decision 94Da36698 delivered on July 14, 1995 (Gong1995Ha, 2785) Supreme Court Decision 97Da37609 delivered on November 11, 1997 (Gong1997Ha, 3780)

El Fire and Marine Insurance Co., Ltd. (Attorneys Han Han-soo et al., Counsel for the plaintiff-appellant)

Park Chuncheon et al. (Attorney Lee Ha-ap et al., Counsel for the defendant-appellant)

Seoul District Court Decision 98Na24609 delivered on November 10, 1998

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. We examine the grounds of appeal.

In the case of an accident insurance for which the insurer has consented to subrogation against a third party, if the loss occurred due to an act committed by the third party, even if the insured was paid insurance money from a third party after receiving the insurance money, and the insured waivers or agreed to claim damages against the third party, the insured’s right to claim damages against the third party is naturally transferred to the insurer within the scope of the insured amount pursuant to Articles 729 and 682 of the Commercial Act. As such, the insured’s waiver of the right to claim damages regarding the amount of the transferred insurance money or agreement that can be deemed identical to this cannot be deemed to have suffered loss due to the lack of validity as an act by an unauthorized person’s act. Further, even if the insurer again paid the insured damages to the third party after acquiring the insured’s right to claim damages against the third party by subrogation, it cannot affect any right acquired by subrogation from the insurer, but if the third party paid damages to the victim without knowing the fact that the insurer acquired the right to claim damages by subrogation from the insurer, it shall be deemed to be valid as an equivalent occupant of the claim, and if it did not have been paid any excess damages from a third party.

Therefore, in order for an insurer who has paid insurance money to return unjust enrichment or claim for damages against the insured for infringing the insurer's right of subrogation, it means that the insurer paid insurance money to the insured, and that the insured was paid damages from a third party notwithstanding the insured without fault after receiving the insurance money (if the insured's insurance money received from the insurer falls short of the actual amount of damages, the insured still has his/her right to the third party with respect to the difference portion). The insured's compensation for the insured against a third party should be asserted and proved as valid as repayment to the quasi-Possessor of the claim. In this case, the good faith as a requirement for the validity of the repayment to the quasi-Possessor of the claim must be interpreted as requiring the insurer to believe that the quasi-Possessor is a true right holder as well as the quasi-Possessor's failure to know that the insurer has no right of receiving the payment, and it means that the third party has not been negligent to believe that the insured has taken out the insurance money without fault, or that the insured has already received the insurance money from the insurer in accordance with the requirements of subrogation agreement.

According to the reasoning of the judgment of the court below, the court below held that in this case, unless there was no evidence to support that the perpetrator had paid damages to the Defendants 42,00,000 won on behalf of the insurer without knowing that the perpetrator had acquired the rights by subrogation of the insurer, so long as the sum of the insurance money paid to the Defendants and the damages paid to the Defendants and the damages paid to the Defendant by the tortfeasor in excess of the amount of the deceased’s actual damages, such as the Plaintiff’s assertion, is excessive damages, even if the sum of the insurance money paid by the Plaintiff to the Defendants and the damages paid to the Defendant in excess of 30,000,000,000 won, the Plaintiff cannot be deemed to have suffered damages because it could not affect the right to claim damages already acquired by subrogation of the insurer. According to the records, the Nonparty, who is the perpetrator, was aware of the fact that the deceased had received the insurance money by purchasing the accident of this case from the deceased and his bereaved family members and the Defendants, the insurer, and the Defendants should have determined that the damages still remains in excess damages.

Of course, in the order of the trial of the court below, first, it is determined whether the insured who received the insurance money is an excessive compensation by additionally receiving the damage from a third party. If the excess compensation is not an excessive compensation, it is not necessary to determine whether it is effective as repayment to the quasi-Possessor of the claim. If the excess compensation was made, it is logical to examine whether the part was effective as repayment to the quasi-Possessor of the claim, and it would result in an infringement of the insurer's right of subrogation. However, it is not unlawful because the judgment was deferred as to whether it is excessive compensation and the judgment was made as to whether it was effective as repayment to the quasi-Possessor of the claim under the assumption of excessive compensation.

Therefore, the judgment of the court below is not erroneous in the misapprehension of legal principles as to the repayment of the insurer's subrogation and quasi-occupier of the claim, or in the misconception of facts as pointed out in the theory of lawsuit.

2. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo (Presiding Justice)